Need answer to legal question!

08/04/2003 | Trust but Verify

[Trust but Verify]

I have what I beleive to be a simple question for our wonderful legal eagles in FReeperland.

Over a year ago my husband's grandmother passed away and left her home to my husband. He knew he would be getting the house,(she used a quit-claim as the vehicle to transfer the house to him) but wasn't aware of any will or the distribution of the rest of her assets. Finally, after a year of evasion, his aunt produced a will. There was one major surprise: My husband is named in the will as the executor. This is the first he knew of it and his aunts who both had copies of this will never told him. His aunt who had general power of attorney said it was within her power as such designee to disburse the assets, which she has done, with the exception of the house.. It has always been my understanding that power-of-attorney ends with the death of the person, and that the will, if any, is then invoked. Am I correct?

[templar]

Generaly speaking (very generally), if the decedant died testate, leaving behind a will, all of his estate became subject to the probate laws of the State in which he resided. Power of attorney while he was living would not overrule the State probate laws.

Time to see a probate attorney for genuine advice.

[brityank]

Try FindLaw.com -- they have most of the basic questions you may have listed, and can give you links to lawyers in your area.

Good luck.

[supercat]

Be very careful with that leverage. Threatening criminal prosecution unless someone cooperates in a civil matter (such as a probate) can be considered extortion.

What are the boundary lines. It would seem that there should be some degree of latitude to charge or not based upon a person's actions. After all, if a person bounces a check but makes good on it, that would not be considered a criminal offense, but bouncing a check and attempting to skate would be. If someone bounces a check, would it be untoward of the recipient to tell that person that they will press charges unless the check-writer makes good?

To my mind, the proper line should be restitution, including costs. Is there any legal definition for such things?

[ConservativeLawyer]

What are the boundary lines.

It all depends upon the jurisdiction. I just don't want to see any Freepers cross any lines, so I'm giving a general warning. They should check with experienced counsel in the relevant jurisdiction.

[GovernmentShrinker]

I expect the aunt is in some legal hot water. But I also worry about how a probate court is going to view a will prepared by someone who didn't think to mention to the executor that she'd appointed him as such. In a nasty family fight, this could provide grounds for a legal challenge to the deceased person's mental capacity at the time of preparing the will. And if there are any earlier wills lying around, the case could be tied up for years . . .

[supercat]

But I also worry about how a probate court is going to view a will prepared by someone who didn't think to mention to the executor that she'd appointed him as such.

Perhaps the decedent trusted the aunt to relay the message, and the aunt somehow "forgot" but nonetheless claimed she had?

[Swordmaker]

The aunt used the POA to gain access to the bank accounts of grandma and distributed everything.

Most bank accounts are "frozen" at death, pending probate. The bank that allowed the aunt to access the account may have some culpability and liability in the draining of the accounts.

[alisasny]

Can we get an update...????

[Trust but Verify]

Oh, it just keeps getting worse. The aunt is still claiming there is a second will she is going by but hasn't sent copies to anyone. We are not in that state and this is going to have to wait for clarification until we can make arrangements to get up there and talk to a lawyer. In the meantime, she is starting to bitch about things that have been distributed to the other two daughters that she now wants back. I think my poor husband is going to stroke out over the whole thing.

Check your FReepmail for an example of the insanity we're dealing with.